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MFS Portfolio Limited v Phelan & West Appeal

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  • MFS Portfolio Limited v Phelan & West Appeal



    The claim against our clients in this case was for monies owing under a personal Current Account Overdraft. We lost at first instance before a District Judge in Peterborough County Court and appealed the decision before HHJ Walden-Smith sitting at Cambridge County Court.

    The Appeal was successful yesterday. This is an important case because it confirms that consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. In this instant case the Appeal court found the personal Current Account Overdraft agreement to be unenforceable pursuant to the Consumer Credit Act because of lack of evidence of compliance with the requirements of the OFT determination.

    It was also accepted that Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts, not just credit cards and loans. In this case the Appeal court did find that MFS Portfolio Ltd had complied with the S 78 Consumer Credit Act request. If they hadnt complied with the statutory request then the personal Current Account Overdraft would have been unenforceable pursuant to s.78 (6) (a) Consumer Credit Act , which is contrary to the position creditors normally take.

    The court also positively approved of the principle established in a European case ruling we put before the court that it is for the creditor to prove statutory compliance. The court did not appeove of the District Judges earlier decision in the lower court that our client not recalling something somehow reversed the burden of proof onto our clients and away from the Claimant.

    The appeal court also found that MFS Portfolio Ltd had not proved the Assignment to it from the original creditor.

    We were not successful on the MFS Portfolio Ltds lack of FCA Authorisation point. For obvious reasons, having won the actual appeal for our Clients, this wont be appealed further by our Clients - however this decision is not a binding decision on other courts as HHJ Walden-Smith was sitting as a Circuit Judge and not as a High Court Judge. On this same point, we are currently waiting for reserved judgment, in a different appeal case at Chester County Court, to be handed down.
    Legal Disclaimer
    I am a solicitor Advocate who specialises in consumer credit and my firm is Joanna Connolly Solicitors. My leading case of Carey v HSBC set the legal precedence for creditors compliance with s.77 & s.78 Consumer Credit Act 1974 statutory requests & enforcement of debts in court. Any posts I make on the AAD Consumer Forum are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk.

    If you need to contact me you can send me a message by clicking my username or by emailing me at jo@joannaconnollysolicitors.co.uk or by telephoning 0330 053 9340.

  • #2
    Point:- 1. some clients/peeps may have older/sometime ago overdraft agreements that is to say Letters of Facilities (prior to CCA1974!s), although I am not sure that say on any renewal of facility was changed to the issue of an Actual CCA1974 agreement, i.e. replacing the letters of facilities on any renewal in the past?
    I'm an official AAD Moderator and also a volunteer, here to help make the forum run smoothly. Any views or opinions are mine and not the official line of AAD. Similarly, any advice I have offered you is done so on an informal basis, without prejudice or liability. If in doubt seek advice from a qualified insured professional - Find a Solicitor or go to the National Probono Centre.

    If you spot an abusive or libellous post then please report it by Clicking Here. If you need to contact me, for instance if I've issued you a warning, moved, edited or deleted your post, please send me a message by clicking my username.

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    • #3
      The overdrafts will have been renewed over time so the creditor would still have to provide evidence show that the requirements of the OFT Determination was complied with and also comply with any S.78 CCA request made
      Legal Disclaimer
      I am a solicitor Advocate who specialises in consumer credit and my firm is Joanna Connolly Solicitors. My leading case of Carey v HSBC set the legal precedence for creditors compliance with s.77 & s.78 Consumer Credit Act 1974 statutory requests & enforcement of debts in court. Any posts I make on the AAD Consumer Forum are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide on the forum is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk.

      If you need to contact me you can send me a message by clicking my username or by emailing me at jo@joannaconnollysolicitors.co.uk or by telephoning 0330 053 9340.

      Comment


      • #4
        Thankyou = we know what to respond to any such question from members then regarding old Overdrafts>
        I'm an official AAD Moderator and also a volunteer, here to help make the forum run smoothly. Any views or opinions are mine and not the official line of AAD. Similarly, any advice I have offered you is done so on an informal basis, without prejudice or liability. If in doubt seek advice from a qualified insured professional - Find a Solicitor or go to the National Probono Centre.

        If you spot an abusive or libellous post then please report it by Clicking Here. If you need to contact me, for instance if I've issued you a warning, moved, edited or deleted your post, please send me a message by clicking my username.

        Comment


        • #5
          Im liking what Im reading here!!! Well done Jo, great work.

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          • #6
            Can the 'Great Unwashed' get access to a transcript?

            Comment


            • #7
              good result. i previously did a valid request accordingly, which was refused by the dca.
              no matter now though as it is now statute barred

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